The Democrats’ Next Supreme Court Nominee

Meet Patricia Millett, the hero of the Jane Doe abortion case and a worthy successor to Ruth Bader Ginsburg.

Patricia Millett in the Rose Garden of the White House on June 4, 2013.

Kevin Lamarque/Reuters

Over the past five days, Judge Patricia Millett performed the judicial equivalent of a triple axel. Millett, who sits on the U.S. Court of Appeals for the District of Columbia Circuit, first dissented from a decision by a three-judge panel delaying an undocumented minor’s abortion. Her dissent was so powerful that when the full D.C. Circuit eventually reversed the panel’s ruling, it did nothing more than explain in a single paragraph that Millett had it right. The judge then took a well-earned victory lap, penning a trenchant concurrence that excoriated her conservative colleague’s anti-abortion, anti-immigrant casuistry. Her brilliant performance secured a vulnerable young woman’s right to bodily autonomy. It should also earn Millett a spot at the very top of the Supreme Court shortlist the next time a Democratic president gets tasked with making a selection.

Even before Millett’s recent triumph, the 54-year-old judge was widely recognized as a Supreme Court contender. Her resume is sterling: She graduated from Harvard Law, clerked on the 9th U.S. Circuit Court of Appeals, and worked at the Department of Justice preparing and arguing appellate cases. She then served as an assistant to the solicitor general, ultimately arguing 25 cases before the Supreme Court. Millett then took a job at the prestigious firm Akin Gump in 2007 and continued to argue before the justices. In June 2013, President Barack Obama nominated her, along with Robert L. Wilkins and Nina Pillard, to the D.C. Circuit. That December, Democrats eliminated the filibuster for lower-court nominees in order to confirm the trio.

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Millett’s role in the Jane Doe ordeal illustrates why Obama was eager to elevate her to the bench. The saga began in September, when the Trump administration tried to stop Doe, an undocumented 17-year-old, from obtaining an abortion. Doe arrived in the country illegally and was placed in a federally funded shelter, which refused to let her terminate her pregnancy, following a government directive. With the help of the American Civil Liberties Union, Doe sued, alleging a violation of her constitutional right to abortion access. A district court ruled in her favor, but the Justice Department appealed. The case was assigned to a panel of three randomly selected judges: Millett, plus conservatives Brett Kavanaugh and Karen L. Henderson.

At oral arguments, Millett laid bare the flaws in the DOJ attorney’s argument. The government claimed it did not want to “facilitate” Doe’s abortion and that Doe could self-deport if she wanted the procedure. But in reality, Millett noted, the government was merely vetoing Doe’s abortion, asserting direct control over her reproductive capacities in clear violation of the Constitution.

Initially, Millett’s fierce questioning seemed to be for naught. Later that day, Kavanaugh and Henderson crafted a nonsensical order that further postponed Doe’s abortion, requiring her to acquire a sponsor before exercising her right to choose. In response, Millett wrote a searing dissent lambasting both her colleagues and the government. “There are no winners in cases like this,” Millett began:

But there sure are losers. As of today, J.D. has already been forced by the government to continue an unwanted pregnancy for almost four weeks, and now, as a result of this order, must continue to carry that pregnancy for multiple more weeks. Forcing her to continue an unwanted pregnancy just in the hopes of finding a sponsor that has not been found in the past six weeks sacrifices J.D.’s constitutional liberty, autonomy, and personal dignity for no justifiable governmental reason.

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With remarkable clarity given the time constraints, Millett explained why the government may not, consistent with the Due Process Clause, block Doe’s abortion. “The United States argues that a federal government official in Washington, D.C.” can control Doe’s medical decisions, she wrote:

No judicial bypass exists for that federal official’s decision. That is an astonishing power grab, and it flies in the teeth of decades of Supreme Court precedent preserving and protecting the fundamental right of a woman to make an informed choice whether to continue a pregnancy at this early stage.

Millett also attacked an amicus brief filed by the Texas attorney general arguing that undocumented immigrants like Doe are not “persons” under the Constitution and thus have no rights. “The implications of amici’s argument,” she wrote, are “deeply troubling”:

If true, then that would mean she and everyone else here without lawful documentation … have no constitutional right to bodily integrity in any form. … They could be forced to have abortions. They could, if raped by government officials who hold them in detention, then be forced to carry any pregnancies to term. Even if pregnancy would kill the mother, the Constitution would turn a blind eye. Detainees would have no right to any medical treatment or protection from abuse by other detainees.

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“J.D. retains her basic rights to personhood,” Millett concluded.

After all, this child fled here all alone in a desperate effort to avoid severe abuse. And, unfortunately, other women and girls desperate to escape abuse, sexual trafficking, and forced prostitution undoubtedly will also find themselves on our shores and pregnant. … When they decide that their dire circumstances leave them in no position to carry a pregnancy to term, the Constitution forbids the government from directly or effectively prohibiting their exercise of that right in the manner it has done here.

The dissent came down on Friday evening. On Sunday, armed with Millett’s opinion, the ACLU asked the full D.C. Circuit to vacate the panel decision and allow Doe to get an abortion. Two days later, the court rescinded the panel’s order by a 6–3 vote and ruled in Doe’s favor. In an extraordinary and unusual move, the court did not issue a majority opinion. Instead, it simply wrote that it agreed with Millett. In just four days, her opinion had been transformed from a dissent into the law.

But Millett wasn’t finished. Kavanaugh, clearly furious about the sudden reversal of fortune, dissented from Tuesday’s order, complaining that the government had a substantial interest in “seeking to place the minor in a better place when deciding” whether “to make a major life decision.” Millett retorted that “J.D. has already made her decision, and neither the government nor the dissenting opinion identifies a constitutionally sufficient justification … for requiring J.D. to wait for what may or may not be a better environment.”

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She also scorned Kavanaugh’s paternalistic suggestion that, with a “support network of friends and family,” Doe might back out of the abortion. She pointed out that Doe had already received judicial bypass, as required by Texas law, to terminate her pregnancy. “Unfortunately, the central reason for the bypass process,” Millett wrote, “is that pregnant girls and women too often find themselves [in] dangerous situations … in which those networks have broken down.” Condescending judges like Kavanaugh do not get to force these women to chat with their “network” to delay “the exercise of reproductive choice.” (Henderson, too, wrote a dissent to Tuesday’s ruling, arguing that Doe does not qualify as a “person” under the Due Process Clause. Millett chose not to re-engage with this outrageously wrongheaded, Dred Scott–esque assertion, which she had already countered in her firstdissent.)

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I find it amazing and, in fact, disgusting that, in the opinion of the so-called conservative judges, a fetus is a person, and a corporation is a person ( with spiritual sensitivities they can impose on their employees); but a... More...

“The court today,” Millett concluded, “correctly recognizes that J.D.’s unchallenged right under the Due Process Clause affords this 17-year-old a modicum of the dignity, sense of self-worth, and control over her own destiny that life seems to have so far denied her.”

On Wednesday morning, Jane Doe finally obtained her abortion. In a statement, Doe wrote: “This is my life, my decision. I want a better future. I want justice.” And justice she received, delayed but not denied, thanks in large part to Patricia Millett. The next Democratic Supreme Court nominee must be a worthy successor to Justice Ruth Bader Ginsburg, a judge who will defend reproductive freedom without reservation or apology. A judge, in other words, like Millett. America is lucky to have her on the D.C. Circuit. Hopefully, it won’t be long before she ends up where she really belongs—on the highest court in the land.

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